United States District Court, E.D. Virginia, Richmond Division
DR. MARK G. TURNER, DDS, PC, and DR. MARK G. TURNER, DDS in his Individual capacity, Plaintiffs,
VIRGINIA DEPARTMENT OF MEDICAL ASSISTANCE SERVICES, et al. Defendants.
MEMORANDUM OPINION (GRANTING DEFENDANTS' MOTIONS
TO DISMISS; DENYING MOTION TO TRANSFER AS MOOT)
E. Hudson United States District Judge
matter is before the Court on three Motions to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) and a
Motion to Transfer Venue in accordance with 28 U.S.C. §
1404.The Complaint contains one count alleging a
violation of the Sherman Act and several counts alleging
violations of state law.
parties have filed memoranda supporting their respective
positions. The Court will dispense with oral argument because
the facts and legal contentions are adequately presented in
the materials before the Court, and oral argument would not
aid in the decisional process. E.D. Va. Local Civ. R. 7(J).
reasons stated herein, the Court will grant the Motions to
Dismiss. Count One will be dismissed with prejudice. The
remaining state law counts will be dismissed without
prejudice. The Motion to Transfer Venue will be denied as
required by Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the Court assumes Plaintiffs well-pleaded
allegations to be true and views all facts in the light most
favorable to him. T.G. Slater & Son v. Donald P.
& Patricia A. Brennan LLC, 385 F.3d 836, 841 (4th
Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993)). Viewed through this lens,
the facts are as follows.
Dr. Mark G. Turner, DDS ("Plaintiff) was a dentist in the
Roanoke, Virginia area during the period relevant to the
Complaint. (Compl. ¶ 1.) From 2008 to 2014, Plaintiff
treated Medicaid patients in the Smiles for Children
("SFC") program pursuant to an agreement with
Defendant Dentaquest, LLC. (Id. ¶¶ 2-3.)
DMAS is the Virginia agency tasked with overseeing the SFC
program and contracted Defendant Dentaquest to administer and
supervise the program. (Id. ¶ 6.) DMAS is
managed by the Secretary of Human Resources and a Director of
Medical Assistance Services, who is appointed by the Governor
and subject to confirmation by the General Assembly. Va. Code
Ann. § 32.1-323. Additionally, DMAS has an eleven-member
board ("DMAS Board"), which is comprised of five
members who are health care providers and six members who are
not health care providers. Va. Code Ann. § 32.1-324(A).
The DMAS Board formulates and submits a plan for the
provision of medical assistance services to the U.S.
Secretary of Health and Human Services in accordance with
Title XIX of the Social Security Act. Va. Code Ann. §
32.1-325(A). The Director of Medical Assistance Services is
empowered to administer this plan and to "enter into all
contracts necessary or incidental to the performance of the
Department's duties and execution of its powers as
provided by law." Va. Code Ann. § 32.1-325(D)(1).
program is split into two parts: one component of the program
is dedicated to treating patients up to the age of twenty one
and the other component focuses on treating patients that are
over the age of twenty one. (Id. ¶ 4.)
Plaintiff "worked exclusively with the Over 21
portion" of the SFC program. (Id.) During his
involvement with the SFC program, Plaintiff operated what was
likely "the largest safety net adult Medicaid practice
in Virginia" and "was treating at least 75% of the
eligible Medicaid adults receiving treatment in the Roanoke
Valley." (Id. ¶ 10.) The patients
Plaintiff treated under the SFC program formed the entirety
of his practice. (Id. ¶ 3.)
Roanoke-based Mission of Mercy Clinic ("MOM") was a
project of the Virginia Dental Association ("VDA")
that provided "free, volunteer traveling dental"
services to the same segment of the population as Plaintiff.
(Id. ¶¶ 13-14.) Defendant Dickinson, the
Executive Director of the VDA, and Defendant Black, a VDA
board member, are Founders of MOM, and Defendant Black serves
as its Dental Director. (Id. ¶¶ 13, 27.)
Plaintiff claims that competition with the MOM was
detrimental to his practice, but he also credits his dental
practice as a "contributing factor [to] the Roanoke
Mission of Mercy going out of business." (Id.
¶ 42.) The MOM's financial model proved unworkable,
and, sometime after September 2012, the program was
reorganized into a Mini-MOM concept, which was "fully
endorsed" by the VDA. (Id. ¶¶ 14, 42,
January 2014, Defendant Dentaquest ended Plaintiffs
eligibility under the SFC program by terminating Plaintiffs
contract "without cause." (Id.
¶¶ 21, 45.) Starting in 2014, Commonwealth Dental
Clinic ("CDC"), which is owned by Defendant Harvey,
became the only "provider for Adult (Over 21) Medicaid
dental services in Western Virginia." (Id.
alleges that the "defendant dentists exercised their
market power to push the Plaintiff out of his dental market
niche, and out of business" and that DMAS and Dentaquest
"knew there was antitrust activity" and took action
that led to "further cover up and concealment of
Defendants' actions against [Plaintiff]."
(Id. ¶¶ 18, 54-55.) Specifically,
Plaintiff claims that, in downsizing from the financially
inviable MOM, Defendants agreed to provide treatment to
non-Medicaid-eligible patients at the Mini-MOMs and funnel
all Medicaid-eligible patients to Defendant Harvey's CDC.
(Id. ¶¶ 14, 18, 43.) Plaintiff further
alleges that "Defendant Greg Harvey agreed to absorb the
Over 21 Medicaid practice of Plaintiff on the condition that
he would not have to compete directly with Plaintiff."
(Id. ¶ 48.) As such, Plaintiff alleges that
Defendants Dickinson, Black and Harvey "joined together
... to put [Plaintiff] out of business in the Medicaid [SFC]
mentioned above, Defendant Dentaquest terminated Plaintiffs
contract, ending his eligibility under the SFC program.
(Id. ¶¶ 21, 45.) Plaintiff does not
contend that Defendant Dentaquest lacked the contractual
right to terminate his contract. Instead, Plaintiff alleges
that Defendant Dentaquest "did not act independently,
" that "DMAS sought the Plaintiffs termination
based upon the advice of Defendants Terry Dickinson, David
Black and/or Greg Harvey, " and that Defendant
Dentaquest notified Plaintiffs patients of his termination
before the deadline for his appeal had passed. (Id.
¶¶ 45, 46, 61.)
alleges that Defendant Dickinson communicated the progress of
Plaintiffs termination to Defendant Black; that Defendants
Black and Harvey purchased a building to house CDC prior to
Plaintiffs termination "with the knowledge and
intent ... that one of their main competitors
([Plaintiff]) would be eliminated by Defendant
Dentaquest;" and that the VDA, led by Defendant
Dickinson, supported the CDC despite "not supporting]
the Over 21 Benefit in the past." (Id.
¶¶ 24, 35, 47.)
January 2015, Plaintiff filed an ethics complaint ("2015
complaint") against Defendants Harvey and Black with the
VDA Ethics Committee regarding ethics violations surrounding
the naming and advertising of CDC. (Id. ¶ 27;
Exhibit D, ECF No. 1-4.) Plaintiff states that the VDA
"likely did not conduct a review of [Plaintiff]'s
Ethics Complaint, as, if they did, David Black would have
been found blatantly guilty." (Compl. ¶ 27.)
Further, Plaintiff alleges that Defendant Parris-Wilkins, a
member of the VDA and the VDA Ethics Committee,
"presumably" ruled against this complaint.
(Id. ¶ 31.)
April 2016, Plaintiff was the subject of an inquiry by the
Virginia Board of Dentistry ("BOD") and was
ultimately sanctioned for violations stemming from the
closure ofhis dental practice in 2014. (Id. ¶
31; Exhibit N, ECF No. 1-17.) Defendant Parris-Wilkins was on
the BOD panel that ruled against Plaintiff. (Compl. ¶
31.) Plaintiff contends that Defendant Parris-Wilkins'
service on this panel was a clear conflict of interest, due
to her "close relationship" with Defendant
Dickinson and her role in ruling against the 2015 complaint.
(Id. ¶ 33.) In sum, Plaintiff claims that
"Defendant Parris-Wilkins was involved in the
Defendants' attempts to cover up their actions against
asserts a cause of action under Section One of the Sherman
Act and alleges that the relevant service market is:
(1) adult (over 21) dental services recognized under the
Medicaid approved Smiles For Children program; (2)
tooth extractions and related services, as identified under
Medicaid approved Over 21 Smiles For Children
program; and (3) Medicaid approved services for the Over 21
members of the Smiles For Children program in
Western Virginia, and within a two hour drive of Roanoke,
(Id. ¶ 56.) Plaintiff claims that, as a result
of Defendants' anticompetitive actions, dentists have
been deterred from entering the market and there has been a
significant reduction in the availability of dental services.
(Id. ¶ 64.) Further, CDC will continue to
exercise its "influence" to maintain a
"monopoly" over the market. (Id.)
Plaintiff also claims that he has been "directly
harmed" by Defendants' anticompetitive conduct and
continues to suffer "significant economic and financial
loss." (Id. ¶ 67.)
previously brought a nearly identical action against a nearly
identical cast of defendants in the United States District
Court for the Western District of Virginia. See Turner v.
Va. Dep 't of Med. Assistance Servs., 230 F.Supp.3d.
498 (W.D. Va. 2017) (hereinafter "Western District
Case"). After considering Plaintiffs arguments, the
Honorable Judge Jackson L. Kiser granted the defendants
motions to dismiss and dismissed the action without
Standard of Review
a court considering a motion to dismiss is both informed and
constrained by the four corners of a complaint. The court,
however, may properly consider documents that are attached to
the complaint, Fed.R.Civ.P. 10(c), and take judicial notice
of matters of public record, Sec'y of State for
Defence v. Trimble Navigation Ltd, 484 F.3d 700, 705
(4th Cir. 2007). The task at hand is to determine the
sufficiency of the Complaint, "not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In
considering a motion to dismiss, plaintiffs well-pleaded
allegations are taken as true and the complaint must be
viewed in the light most favorable to the plaintiff. T.G.
Slater & Son, Inc., 385 F.3d at 841.
"in the event of conflict between the bare allegations
of the complaint and any exhibit attached ... the exhibit
prevails." Fayetteville Inv'rs v. Commercial
Builders, Inc.,936 F.2d 1462, 1465 (4th Cir. 1991). The
so-called exhibit-prevails rule is only applicable when a
plaintiff relies on an exhibit to form part of its claim,
such that a court can presume plaintiff "has adopted as